Immigration Bill

Lord Lester of Herne Hill Excerpts

Tuesday 26th April 2016 Lords Chamber

[Lord Rosser]

While it is welcome that the Government now acknowledge that long-term detention without judicial oversight is unacceptable in relation to considering bail, the amendment moved by the noble Lord, Lord Ramsbotham, relates to required judicial oversight of whether a person should continue to be detained at all beyond 28 days, related to whether the exceptional circumstances of the case require extended detention.

We have a commitment to end indefinite detention in the immigration system. The independent Shaw review into the welfare of vulnerable persons in detention also called for action to end excessive detention. This amendment provides for a presumptive limit on immigration detention of 28 days and requires the Secretary of State to gain judicial approval for any extension beyond that period, which would be permitted only if exceptional circumstances had been shown. I certainly do not wish to reiterate all the arguments that have been made, and I take on board the points made in earlier interventions about keeping it brief, so I shall just say that we shall be voting for the amendment moved by the noble Lord, Lord Ramsbotham.

On Motion D1, as the Minister said, last week the Government announced plans to introduce a 72-hour limit on the detention of pregnant women, extendable to one week with ministerial approval, and a government amendment to provide for this was agreed in the Commons yesterday. That amendment was not in line with the findings of the Government’s independent review by Stephen Shaw into the welfare in detention of vulnerable persons, which found that the presumptive exclusion of pregnant women from detention should be replaced with absolute exclusion. Shaw concluded that immigration detention poses clear health risks to pregnant women and their unborn children and that it is being used more widely than in the “exceptional circumstances” outlined in Home Office guidance.

The amendment moved by my noble friend in the light of the Government’s resistance to an absolute ban has the support of various interested groups on the basis that it is the best that might currently be achievable. However, an absolute ban on the detention of pregnant women remains our objective, and we will seek to deliver it at the first available opportunity, a stance that has the full backing and support of my noble friend Lady Lister of Burtersett.

[Lord Lester of Herne Hill (LD)]

My Lords, will the Minister clarify for my benefit a matter which concerns me? Does he agree that the writ of habeas corpus referred to by the noble Lord, Lord Ramsbotham, would not be of any use in the circumstances that we are discussing because the return to the writ would simply show that there was lawful authority for the detention? If that is right, does he agree that the right to liberty could be relied upon only by reference to the Human Rights Act and Article 5 of the European Convention on Human Rights, which would mean that any statutory provision that we approve would have to be read and given effect in accordance with the convention right to liberty?

[Lord Keen of Elie]

My Lords, on the last point, in respect of any answer to a writ of habeas corpus it would be possible to rely upon lawful detention, but the relevant lawful provision would have to be in compliance with the convention.

I turn to notice, a point that was made by the noble Lord, Lord Pannick, when he was referring to the matter of bail. He spoke of the default position. That is very important. It is a matter that was pointedly not addressed by the noble Lord, Lord Ramsbotham, who said repeatedly that it was only after six months that there would be any judicial oversight of detention in the context of immigration. That is not the case. Once a person is detained, it is open to them to make an application for bail. That application is made to a judicial tribunal and will therefore be the subject of judicial determination. The onus will rest very firmly, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, made clear, upon the Home Secretary to justify the detention or continued detention in those circumstances. So it is not a question of judicial oversight arising only after six months: it is available from the outset. What we are providing for is the exceptional case in which an application is not made or is refused and, after a delay of time, should be reviewed.